The Kavanaugh Confirmation Fight Is Getting Messy

President Donald Trump's nominee for the Supreme Court should be sailing through the Senate. Instead, his situation is only getting worse.

August 18, 2018

Replacing Anthony Kennedy should have been easy for Republicans. His retirement in June gave the party a historic opportunity: to replace the Supreme Court’s swing justice with a more doctrinaire conservative jurist. The party’s prime directive—to appoint like-minded justices on the highest bench in the land—is what helped President Donald Trump guarantee the GOP’s fealty through every twist and turn of the 2016 election.

All that Trump had to do was select a nominee who would be well qualified for the post, have a relatively minimal paper trail, and have never expressed any views whatsoever on abortion rights. Neil Gorsuch met all these qualifications last year when Trump nominated him to fill the vacancy left by Justice Antonin Scalia’s death in 2016. Senate Democrats cried foul over the Republican blockade of Judge Merrick Garland and raised their usual ideological concerns about conservative Supreme Court nominees, but they otherwise failed to slow Gorsuch’s momentum towards confirmation.

Brett Kavanaugh’s confirmation process is turning into a mess by comparison. Americans are less supportive of his elevation to the high court than any successful Supreme Court nominee in the past thirty years. The voluminous paper trail from his six-year tenure in the George W. Bush White House is turning into a political liability. And the GOP’s haste to put him on the court before those records are available gives Democrats the chance to question the process’s legitimacy. The Senate’s narrow Republican majority means Kavanaugh is still more likely to be confirmed than not. But he’s skating closer to thin ice than a nominee in his position should be.

To his credit, Senate Majority Leader Mitch McConnell told the president that this could happen. The White House initially settled on four finalists after Kennedy announced his retirement last month, including Kavanaugh. Trump reportedly favored the 53-year-old D.C. Circuit Court of Appeals judge from the start, thanks in part to a nudge from Kennedy himself. (Kavanaugh clerked for Kennedy in the early 1990s.)

McConnell tried to persuade the White House to select from two of the other judges on the shortlist instead. According to The New York Times, the Kentucky senator warned White House Counsel Don McGahn that Kavanaugh’s extensive paper trail would make things more difficult for the Senate compared to other potential selections. Any delays would make it harder for senators to confirm a nominee before the court reconvenes in early October, and a lengthy one could push the process uncomfortably close to the midterm elections in November. Despite these concerns, Trump tapped Kavanaugh for the lifetime appointment.

What sets Kavanaugh apart from prior nominees is the sheer volume of documents connected to him. Supreme Court nominees almost always have a paper trail of some kind, which usually includes their judicial opinions, their scholarly work and any other writings off the bench, their records while serving in the federal government, and more. The Senate obtained almost 150,000 pages of documents last year from Gorsuch’s one-year tenure as head of the Justice Department’s Civil Division. In 2010, the Obama administration allowed the release of more than 160,000 pages from Elena Kagan’s four-year stint in the Clinton White House.

Kavanaugh’s records, by comparison, are vast. The National Archives, also known as NARA, says that it possesses “several million pages” of documents and emails from his tenure in government service. Most of those records are from his work in the White House counsel’s office from 2001 to 2003, as well as his stint as the White House staff secretary from 2003 to 2006. In addition, NARA holds at least 20,000 pages of documents from his work in the 1990s for independent counsel Ken Starr, who oversaw the Whitewater investigation and other probes into President Bill Clinton’s scandals. The sheer volume didn’t seem to bode well for Republicans’ hopes of confirming Kavanaugh quickly.

Rather than change their timetable, Republicans opted to change the process itself. First, they narrowed the scope of documents they would seek. Senate Judiciary Committee chairman Chuck Grassley formally requested only 900,000 pages of documents from NARA and the George W. Bush Presidential Library last month, none of which would come from his time as White House staff secretary. The staff secretary position is not a high-profile post, but it can be an influential one in internal policy-making. Kavanaugh himself has cited his time there as a valuable experience in his judicial career. Accordingly, I noted last month that Republicans’ justifications for keeping those documents hidden from senators (and the public) are unconvincing, to say the least.

Second, Republicans decided to move ahead on Kavanaugh’s confirmation before their own document request would be available. NARA said on August 2 that it wouldn’t be able to complete its review of them until late October. Grassley then announced that the judiciary committee would begin Kavanaugh’s confirmation hearings on September 4—almost two months before NARA said it would be able to complete its review. As a result, Republican and Democratic senators alike won’t have access to Kavanaugh’s complete record when they have their only chance to question him under oath about it next month.

Finally, Republicans began releasing Kavanaugh’s records in their private method of review. Under federal law, ex-presidents can designate a representative to review documents before they’re released from their presidential library. That representative then advises the ex-president on which documents should be withheld on executive-privilege grounds and which ones should be made public. George W. Bush’s choice for the role was William Burck, a prominent Washington lawyer with deep Republican roots.

Democrats quickly criticized Burck’s key role in the review process because he also previously worked under Kavanaugh when the judge was Bush’s staff secretary. “Take note: Unless it was produced by the National Archives, every document you see from Judge Kavanaugh’s White House tenure was selectively chosen for release by his former deputy, Bill Burck,” Illinois Senator Dick Durbin wrote on Twitter last week. “This is not an objective process.”

Even the National Archives took note of Senate Republicans’ unusual methods. In a statement on Wednesday, NARA remarked that Burck has “begun to provide copies of those records directly to the Senate Judiciary Committee, which is something that has never happened before.” The Archives also made an unambiguous effort to distance itself from what looks like a partisan review process: “This effort by former President Bush does not represent the National Archives or the George W. Bush Presidential Library.”

That narrow window into Kavanaugh’s record has already provided Democrats with more fodder to attack him. On Friday, Schumer, Vermont Senator Patrick Leahy, and California Senator Dianne Feinstein issued a statement claiming that “committee confidential” documents—that is, documents to which only Senate Judiciary Committee members have access—suggested Kavanaugh misled the Senate about his role in crafting the Bush administration’s detainee policies during his 2006 confirmation hearing. The judge previously got into hot water with Senate Democrats in 2007 when they leveled similar accusations against him.

A hundred Democratic press releases couldn’t be more damning than this visible GOP nervousness about their nominee.

In a way, it’s hard to tell which side is treating Kavanaugh worse. Many conservatives and even someliberals have lauded him as both a superbly qualified judge and a fundamentally decent person. But you wouldn’t know that by how zealously the White House and the Senate Judiciary Committee are guarding his White House records. Republicans are instead treating his nomination with the affect of a used-car salesman who doesn’t think you need to pop the hood before signing a lease. A hundred Democratic press releases couldn’t be more damningthan this visible GOP nervousness about their nominee.

If Kavanaugh’s confirmation were a sure thing, all of this document wrangling might be a moot point. But the would-be justice is getting a cool reception from the American public. A CNN poll this week found that only 37 percent of Americans support his nomination while 40 percent of Americans say they oppose it. Those numbers are lower than any other prospective justice in the past three decades other than Robert Bork, who was rejected by the Senate in 1987. Fueling the opposition to Kavanaugh is a stark gender divide: Only 28 percent of women said that the Senate should vote to confirm him to the Supreme Court.

There are no indications so far that any Republican senators are willing to vote against his confirmation, so it’s still more likely than not that he’ll eventually become the court’s newest justice when it reconvenes in October. If that trajectory changes, however, Trump and the Republican Party will have only themselves to blame.